Symbolic speech

Communication by means other than oral speech or the printed word, usually through objects or actions that have some special significance, such as picketing, burning flags or draft cards, marching, and wearing protest armbands.

The Supreme Court gradually developed a theory of how the First AmendmentFirst Amendment applies to so-called “symbolic speech.” However, no doubt reflecting the complexity of the issue and the infinite forms that such expression may take, it did so on a case-by-case basis that left the exact boundaries concerning what forms of nonverbal communication are completely protected somewhat vaguely defined. Nonetheless, the Court has increasingly made clear that peaceful forms of nonverbal expression, just as with more traditional forms of expression, may not be forbidden on the basis of content, although reasonable regulations, if their intent is not to suppress, may be imposed on such communications.Speech, freedom ofSymbolic speech

Flags

The Court’s first symbolic speech case was Stromberg v. California[case]Stromberg v. California[Stromberg v. California] (1931), a conviction under a California law, passed during the Red Scare of 1919, that banned the display of red flags in an attempt to suppress procommunistCommunism organizations. The Court struck down the law on the grounds that to forbid the display of emblems used to foster even “peaceful and orderly opposition” to government was an unconstitutional violation of the First Amendment. This ruling clearly foretold the general direction of later Court decisions in the symbolic speech area, namely that nonverbal expression that was peaceful and served as a functional equivalent of ordinary speech or press was, from a constitutional standpoint, equivalent to them. It clearly established the general principle that symbols such as flags could legally be used to peacefully express political opposition. It also specifically contained the seeds of the Court’s holdings in Texas v. Johnson[case]Texas v. Johnson[Texas v. Johnson] (1989) and United States v. Eichman[case]Eichman, United States v.[Eichman, United States v.] (1990) that peaceful flag burning and other forms of flag desecration for the purpose of expressing political protest were fully protected.

The Court’s second important symbolic speech case also involved flags. In West Virginia State Board of Education v. Barnette[case]West Virginia State Board of Education v. Barnette[West Virginia State Board of Education v. Barnette] (1943), the Court, citing Stromberg among other precedents, overruled its own decision in Minersville School District v. Gobitis[case]Minersville School District v. Gobitis[Minersville School District v. Gobitis] (1940). It held that compulsory public school flag salutes and Pledge of Allegiance requirements were unconstitutional, on the grounds that a child required to attend public schools could not, without violating the First Amendment, be forced by public authorities to verbally or symbolically express sentiments “not in his mind.” In rhetoric since cited by many scholars as among the most important and eloquent ever uttered by the Court, Justice Robert H. JacksonJackson, Robert H. declared, “Compulsory unification of opinion achieves only the unanimity of the graveyard” and that it seemed “trite but necessary to say that the First Amendment to our Constitution was designed to avoid these ends by avoiding these beginnings.” Jackson stated that the case was difficult not because of the principles involved but because the flag involved was that of the United States. He declared:

Freedom to differ is not limited to things that do not matter much. That would be a mere shadow of freedom. The test of its substance is the right to differ as to things that touch the heart of the existing order. If there is any fixed star in our constitutional constellation, it is that no official, high or petty, can prescribe what shall be orthodox in politics, nationalism, religion, or other matters of opinion.

Extensions of Protection

In other rulings, the Court extended the mantle of First Amendment protection to many other forms of symbolic speech, including the right to peacefully picket in labor disputes in Thornhill v. Alabama[case]Thornhill v. Alabama[Thornhill v. Alabama](1940) and to peacefully march in support of civil rights in Cox v. Louisiana[case]Cox v. Louisiana[Cox v. Louisiana] (1965). In a widely publicized 1969 case, Tinker v. Des Moines Independent Community School District[case]Tinker v. Des Moines Independent Community School District[Tinker v. Des Moines Independent Community School District], the Court upheld the right of schoolchildren to wear black armbands to express opposition to the Vietnam War, an activity that the Court termed “closely akin to ’pure speech’” and thus “entitled to comprehensive protection under the First Amendment” as long as it threatened no disruptions. The Court declared that “undifferentiated fear or apprehension of disturbance is not enough to overcome the right to freedom of expression” and that to justify suppression of expression, the government would have to show that its action was “caused by something more than a mere desire to avoid the discomfort and unpleasantness that always accompanies an unpopular viewpoint.”

Court justices not only viewed such nonverbal expression as still essentially communicative in nature but also pointed out that symbolic speech might be the only way for the relatively powerless to gain public attention. In Milkwagon Drivers Union v. Meadowmoor Dairies[case]Milkwagon Drivers Union v. Meadowmoor Dairies[Milkwagon Drivers Union v. Meadowmoor Dairies] (1941), the Court stated, “Peaceful picketing is the working man’s means of communication.” Justice William O. Douglas, dissenting in Adderley v. Florida[case]Adderley v. Florida[Adderley v. Florida] (1966), noted, “Conventional means of petitioning may be, and often have been, shut off to large groups of our citizens [because] those who do not control television and radio, those who cannot afford to advertise in newspapers or circulate elaborate pamphlets may have only a more limited type of access to public officials.”

Furthermore, the Court suggested that highly unorthodox and symbolic speech might especially deserve protection because it could communicate in an emotive way that ordinary speech and writing could not. Therefore, in Cohen v. California[case]Cohen v. California[Cohen v. California] (1971), the Court overturned the conviction of a man who wore a jacket bearing the words “Fuck the Draft,” declaring that words “are often chosen as much for their emotive as their cognitive force,” and that “we cannot sanction the view that the Constitution, while solicitous of the cognitive content of individual speech, has little or no regard for that emotive function which, practically speaking, may often be the more important element of the overall message sought to be communicated.”

The Court increasingly made clear that, just as ordinary written and oral political expression can virtually never be criminalized based on its content, neither can symbolic political speech be restricted on such grounds. In Schacht v. United States[case]Schacht v. United States[Schacht v. United States] (1970), the Court struck down a law that forbade the unauthorized use of military uniforms in dramatic productions only when such use “tended to discredit” the military, and in Boos v. Barry[case]Boos v. Barry[Boos v. Barry] (1988), it voided a law that banned picketing close to embassies only when the picket signs tended to bring the foreign government target into public “odium” or “disrepute.”

Unprotected Expressive Conduct

However, in other symbolic speech cases, the Court declared that symbolically expressive conduct is not always as protected by the First Amendment as is pure speech. Therefore, in Cox v. Louisiana, the Court rejected the idea that the First Amendment and other constitutional provisions afforded “the same kind of freedom to those who would communicate ideas by conduct such as patrolling, marching and picketing on streets and highways” as was provided “to those who communicate ideas by pure speech.”

In United States v. O’Brien[case]O’Brien, United States v.[OBrien, United States v.] (1968), the Court upheld a conviction under a 1965 law that outlawed draft card burning, noting, “We cannot accept the view that an apparently limitless variety of conduct can be labeled ’speech.’” Although the 1965 law was clearly intended to suppress dissent (failure to possess a draft card was already illegal and the congressional debate on the law was filled with references to draft card burners as filthy beatniks, communist stooges, and traitors), the Court upheld it on the strained grounds that it was designed not to hinder free expression but simply to foster the effective functioning of the draft (a purpose that required for its credibility the assumption that the draft administration retained no copies of the information contained on individuals’ draft cards).

In O’Brien, the Court for the first time attempted to establish guidelines for determining when conduct could be constitutionally regulated if it was combined with an expressive element. In short, the Court held that restrictions on mixed conductexpression could be upheld if the regulation was within the government’s constitutional power and furthered an important or substantial governmental interest that did not involve the suppression of free expression and “if the incidental restriction on alleged First Amendment freedoms is no greater than is essential to the furtherance of that interest.” As applied twenty years later to flag desecration, one of the most contentious symbolic speech issues to ever arise, the O’Brien guidelines were held to require the protection of protest flag burning on the grounds that the reason behind attempts to outlaw such expression involved the suppression of free expression.

The Court’s ruling in Schenck v. Pro-Choice Network of Western New York[case]Schenck v. Pro-Choice Network of Western New York[Schenck v. Pro-Choice Network of Western New York] (1997) suggests that further symbolic speech cases will continue to be decided on a case-by-case basis and that the basis of the Court’s ruling may continue to be difficult to determine. In Schenck, the Court upheld the constitutionality of a fifteen-foot fixed buffer zone banning antiabortion activists from protesting and distributing literature around the driveways and entrances to an abortion clinic but struck down a fifteen-foot “floating” buffer around clients and staff entering or leaving the clinic. It held that the first restriction was justified to ensure public safety and order and burdened speech no more than necessary to achieve that goal, but the second restriction burdened “more speech than is necessary to serve the relevant governmental interests.”

Symbolic speech Summary